The Buck Stops Here

Friday, December 30, 2005

Narnia Novelization

This has to be one of the worst ideas of all time. If you make a movie out of a classic and beloved children's book that has sold millions of copies, why on earth would you want to have someone write a book based on the movie?

UPDATE: It's been pointed out that the link above is for a Narnia "picture storybook," which is not quite the same thing as a novelization. That said, I had originally linked to this book, and on reflection, I should have let that link stay. That book is definitely a novelization of the movie, as can be seen from the excerpt here.

Wednesday, December 28, 2005

Everest Marathon

Tenzing Hillary Everest Marathon is an International High Altitude Adventure Sports Event being held at Mt. Everest Base Camp, criss-crossing the Highland Sherpa Trails of Khumbu Valley on May 29 every year, to commemorate the historical ascent on Mount Everest by Late Tenzing Norgay Sherpa and Sir Edmund Hillary on May 29, 1953 . Everest Marathon, one of the Toughest Marathon, is open for all High Altitude Running enthusiasts above 16 years of age with sound mind and body.

ADA decision

In a decision that demonstrates why some people view the Americans with Disabilities Act as out of control, the Ninth Circuit has affirmed a verdict finding that Pacific Bell (otherwise known as SBC) acted illegally in firing a service technician. Here are the basic facts:

In late 1997, Josephs applied for a service technician position with PacBell. Service technicians perform unsupervised, in-home telephone installation or repair. Josephs had been employed for ten years in a similar position with Cox Communications. Josephs checked “NO” in answer to PacBell’s employment application question, “Have you ever been convicted of, or are you awaiting trial for a felony or misdemeanor?”

He was hired for the position in January 1998. Under California Penal Code § 11105(c)(9), PacBell is authorized to obtain the detailed criminal history of employees who will have unsupervised access to customers’ homes. After Josephs had been working for approximately three months, PacBell obtained his criminal history. Following some initial internal confusion as to the contents of the report, PacBell determined that Josephs had been arrested in 1982 for attempted murder and was found not guilty by reason of insanity, and that Josephs had been convicted in 1985 for a 1982 misdemeanor battery on a police officer.

The basis for the lawsuit was that "PacBell regarded him as suffering from a mental illness that might result in future acts of violence." And under the ADA, it is illegal for an employer to discriminate against an employee based on a belief that the employee has a mental illness.

Most businesses would rationally think it too risky to send out a technician into people's homes when that technician had committed attempted murder, and had escaped a guilty verdict only by reason of insanity. Indeed, if the technician had harmed a customer, Pacific Bell would readily be subject to a lawsuit for negligent hiring, as well as for any harm committed by the employee. After all, employers are usually liable for the harms their employees commit on the job.

On a slightly different angle, note that there was a dissent here, by Judge Consuelo Callahan. If Callahan were ever nominated for the Supreme Court, this dissent would surely be portrayed as "anti-civil rights." Something to keep in mind.

UPDATE: Note that I'm not criticizing the Ninth Circuit for getting this decision wrong. Without reviewing the record, the trial, and the briefs in detail, I wouldn't feel prepared to make that judgment. In fact, it might well be the case that if I were a judge, I would feel compelled by the law in the case to vote with the majority. My point here is that if the ADA requires companies to hire (or refrain from firing) mentally ill would-be murderers, the ADA itself should be cut back.

Saturday, December 24, 2005

White Christmas

Many Christmas songs feature the image of snow at Christmastime. "Jingle Bells" (originally a Thanksgiving song, but now played at Christmas). "White Christmas." "Winter Wonderland." "Let it Snow." "Frosty the Snowman." "It's Beginning to Look a Lot Like Christmas." "I'll be Home for Christmas." "It's the Most Wonderful Time of the Year." "Silver Bells." "Sleigh Ride."

Yet in most of the country, by far, it doesn't snow on Christmas. In fact, in much of the country, it rarely snows at any time. So what's the deal? How did snow come to be such an ever-present image?

It must be a modern thing -- few (maybe none) of the traditional Christmas songs go on ad nauseam about snow. Maybe it all goes back to Irving Berlin's White Christmas, which was sung by Bing Crosby in the 1942 movie Holiday Inn. The popularity of that song and movie had to have been influential, I guess.

Fourth Amendment

I'm not a Fourth Amendment expert by any means, nor does it even hold that much interest for me. The modern caselaw involves too much hair-splitting for my tastes. Anyway, one of the lines of doctrine that I had the unfortunate necessity to learn while clerking was the Colonnade-Biswell doctrine. In Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) and United States v. Biswell, 406 U.S. 311 (1972), the Supreme Court held that people who engage in "closely regulated industries" don't have much expectation of privacy for Fourth Amendment purposes. Thus, people who sold liquor or firearms (respectively) could be subject to inspections and seizures without a warrant. In a subsequent case -- New York v. Burger -- the Supreme Court applied this doctrine so that state inspectors could search junkyards for stolen auto parts, again without a warrant.

Anyway, now that so many people are complaining about the NSA's scrutiny of overseas phone calls related to terrorist groups, it would be interesting if they could do one of two things: 1) Demonstrate their logical consistency by arguing that all agencies of the federal government -- not just the NSA -- should have to get a warrant and prove probable cause before performing inspections; or 2) Explain why the inspection of liquor stores or junkyards is so much more important than catching al Qaeda. Otherwise, the criticism of the NSA appears to be nothing more than partisan opportunism.

And on a different note, ever since coming across this line of doctrine, I've always wondered what would stop the police or a state legislature from just announcing that the drug trade was a "closely regulated industry," and hence that any drug user or seller would be subject to search at any time without a warrant. Or perhaps the NSA could do the same here: Terrorism is a "closely regulated industry" -- regulated to the point of prohibition -- and so forth.

Friday, December 23, 2005

Book review

Thursday, December 22, 2005

White Witch actress comments

Tilda Swinton, who plays the "White Witch" in the Narnia movie, had these comments:

Swinton said, ”I wanted to shake up a kind of idea of what I see as a rather dishonorable Hollywood tradition of giving us villains who look dark, and I thought this was the one to do it with ’cause, apart from everything else, she is the White Witch. I also thought it would be particularly irresponsible at this moment for an American, globally released picture to have a villain who looked either like a Jew or an Arab.”

Good thing that Swinton had the idea of making the "White Witch" a white person. Otherwise, goodness knows what the filmmakers might have done. All sorts of ethnic stereotypes about Arabs, no doubt.

Wednesday, December 21, 2005

Privacy

Lots and lots of people have been going ballistic over the fact that NSA computers have monitored a select number of phone calls made internationally. Clearly unconstitutional, they say. Clearly illegal, they say. Grounds for impeachment, some even say.

On a different note, the year is ending soon. People's W-2 forms from work will be coming out, as will receipts from charities, etc. It will soon be time once again for the yearly ritual whereby everyone meekly and mildly registers with a government agency that monitors:

Your address, your place of employment, your salary, the names and social security numbers of your children or other dependents (plus their birth dates); the amounts you may have given to charity; the amount you spend on a mortgage and with what bank; the amount of interest you received on any savings account; the amount you gained from any stocks or investments you might have sold during the past year; any money that you gained from rentals, alimony, unemployment compensation, or IRA distributions; any money that you spent on student loan interest, health savings accounts, child care, care for the elderly, adoption, 401Ks, or moving; etc., etc., etc.

All of this takes a lot of time, of course, so I'd expect everyone to take a short breather before returning to the all-important task of denouncing the NSA for monitoring a few international phone calls made by people associated with Al Qaeda. After all, no free society can tolerate that sort of invasion of privacy.

Monday, December 19, 2005

Gun Control

I recently read Timothy Tyson's When Blood Done Sign My Name, a truly gripping memoir of growing up in small-town North Carolina, particularly focusing on the turmoil in race relations after some local hooligans murdered a black man when Tyson was 11. Highly recommended.

One small thing that I noticed were the incidents when blacks relied on guns to protect themselves. Here are two relevant passages:

Pp. 55-56:

When Col's Klan attacked blacks in Monroe, North Carolina, a local NAACP president named Robert F. Williams organized black military veterans to meet Klan gunfire with gunfire of their own. . . . On October 7, 1957, Cole led a heavily armed Klan motorcade in an attack on the home of Dr. A. E. Perry, the vice president of the NAACP. Firing their guns into Dr. Perry's house and howling at the top of their lungs, the Klansmen ran head-on into a hail of disciplined gunfire. Williams and his friends fired from behind earthen entrenchments and sandbag fortifications, and sent the Klan fleeing for their lives. "When we started firing, they run," one of the black men recalled. "Them Klans hauled it and never did come back to our place."

Sweet. Then this was amusing:

p. 70:

Beyond the chaos in the streets, white terrorism, especially dynamite bombings, had long plagued Birmingham's black community. But Klan terrorists who wanted to kill the leaders of the freedom movement knew that they themselves might die in the attempt. Colonel "Stone" Johnson, a black labor union representative, organized the Civil Rights Guards, who armed themselves to protect the movement and sometimes exchanged fire with the Klan. Asked many years later how he'd managed to protect civil rights leaders in Birmingham, given his commitment to nonviolence, Johnson grinned and said, "With my nonviolent .38 police special."

Sunday, December 18, 2005

NSA Spying

A lot of people were shocked, or at least pretended to be shocked, that since 2002, Bush has authorized the NSA to spy on a number of international calls made by Americans with close ties to Al Qaeda. Personally, I'd be shocked to find out that there was anything that the NSA's computers didn't monitor. (Has no one ever heard of Echelon?) That's not to say that such monitoring is appropriate, but none of this is exactly new.

Another objection is that the NSA did this monitoring without a warrant. That horrifies a lot of people who assume that every search by the government has to have a warrant.

I don't know. Akhil Amar of Yale has written (in various articles and books) that the modern conception of the Fourth Amendment is all wrong. As I recall, his argument is closely tied to the text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment mentions 1) a right of people to be "secure" against "unreasonable searches and seizures; and then in a separate clause, 2) no warrants shall issue except on "probable cause." Notice what it does not say: "The right of the people to be secure against searches without warrants shall be secure," which is what some people seem to think the text says.

From the history of the Fourth Amendment's drafting and application -- again, as I recall from reading Amar's work a few years ago -- it becomes clear that the Founders were actually worried about warrants. That is, far from trying to mandate that the government obtain warrants in all cases, the Fourth Amendment was really intended to limit the availability of warrants, i.e., only on a higher showing of "probable cause" as opposed to mere "reasonableness." This was because a warrant was viewed as giving the government an official license to search with immunity to any further penalties, such as the civil penalties that might otherwise be available against government agents who acted unreasonably.

Amar's historical evidence has been questioned, but he makes a very interesting point. In the current situation, why can't the NSA say, "Monitoring these calls is reasonable; and that's all that the Fourth Amendment requires if the government isn't seeking a warrant"?

Saturday, December 17, 2005

Narnia Controversies

Two of the most common criticisms of the Narnia series are presented here:

[Philip] Pullman is an atheist and, not coincidentally, one of Lewis's fiercest critics. He has said of the Narnia cycle that 'it is one of the most ugly and poisonous things I've ever read' and has called Lewis a bigot and his fans 'unhinged.' The books do have their faults, certainly. They're not nearly as well written as either the 'Potter' or the 'Dark Materials' books. And by the standards of political correctness, they commit a host of sins. They're preachy, they're sometimes gratuitously violent and they patronize girls. The villains, moreover - the Calormenes, who dwell in the south - are oily cartoon Muslims who wear turbans and pointy-toed slippers and talk funny.

Then there's the unfortunate business with Susan, the second-oldest of the Pevensies, who near the end of the last volume is denied salvation merely because of her fondness for nylons and lipstick - because she has reached puberty, in other words, and has become sexualized.

Pullman and the NY Times author have an obvious ax to grind; otherwise, there's no explanation for such misinterpretations of the Narnia series.

First, it is not true that "THE villains" are the Calormenes. In the first book, The Lion, The Witch, and The Wardrobe, the villain is the White Witch and her followers (including a dwarf and a wolf), and Edmund is portrayed in a pretty bad light. In Prince Caspian, the major villain is King Miraz, the uncle of the book's hero, Prince Caspian. Neither is a Calormene. In The Voyage of the Dawn Treader, there isn't any overriding villain; among the bad characters are Eustace (the cousin of the Pevensies), and the corrupt ruler of a Narnian island. In The Silver Chair, the major villain is another sort of White Witch character -- the Queen of the Underworld; other villains include a city of giants who like to eat humans. In The Magician's Nephew, the chief villains are the White Witch again (although she went by the name "Jadis" at that time) and an Englishman who was the uncle of the book's hero Digory.

The Calormenes make an appearance in only two books: The Horse and His Boy, and The Last Battle. Even there, it is false to say that they are all villains. In The Horse and His Boy, the main heroine is a Calormene girl. And in The Last Battle, one of the most striking scenes is where a Calormene man is allowed to enter Aslan's country on the grounds that his previous worship of a false god was all in good faith.

But what about the rest of the Calormenes depicted in those two books? Well, for one thing, the NY Times author is flat wrong to claim that they are "Muslims." Islam is a monotheistic religion that worships God; the fictional Calormenes worship many gods, including the god Tash, a demonic sort of creature with four arms and a vulture's head. If the author thinks that Tash-worship resembles Islam, he ought to check his own prejudices.

As for the other characteristics of Calormenes, Wikipedia has a fairly accurate description here:

Calormene culture is strongly derived from Turkish, Persian, and Indian culture and civilization, presented somewhat in the tradition of the medieval literature the Arabian Nights. Flowing robes, turbans and wooden shoes with an upturned point at the toe are common items of clothing, and the preferred weapon is the scimitar. The people of Calormen are concerned with maintaining honour and precedence, often speaking in maxims and quoting ancient poets. Their style of speech is akin to that of the people in the ancient epic Shahnama by the poet Ferdowsi. They are described as having dark skin, and the men commonly wear beards; the nobles oiled beards. The Narnians view Calormen with distaste because of their support of institutionalised slavery and the cruelty of Calormene nobles to their people and animals. The Calormenes in turn view Narnia and Archenland as barbarous lands inhabited by "demons" (one of which they know as Aslan).

So to sum up: Calormenes are not all "villains" and one of them is the heroine of an entire book; they are not "Muslims"; they simply happen to be a stylized composite of several different cultures. I really don't see the problem here, any more than it is a problem that Lewis made the Dwarfs mostly villains in The Last Battle (anti-dwarf prejudice, perhaps?) or that the worst villain of the entire series is the White Witch.

* * * As for Susan, Andrew Rilstone has a long and thorough explanation of why it's so wrongheaded to suppose that Susan is "denied salvation merely because of her fondness for nylons and lipstick - because she has reached puberty, in other words, and has become sexualized." Nothing about that sentence is correct. Susan is not "denied salvation" in any sense whatsoever. The Last Battle depicts the end of Narnia and the entrance of the Narnians into heaven; the rest of the humans are present in heaven only because they died on Earth.

But Susan didn't die. Back on Earth, she's still alive and kicking. That's why Lewis wrote the following letter in 1957:

The books don’t tell us what happened to Susan. She is left alive in this world at the end, having turned into a rather silly, conceited young woman. But there is plenty of time for her to mend, and perhaps she will get to Aslan’s country in the end — in her own way.”

So the New York Times author is dead wrong on the "denied salvation" bit. But that's not all. Is Lewis really frowning on Susan merely because "she has reached puberty"? No. Here is the relevant passage, in its entirety:

Sir," said Tirian, when he had greeted all these. "If I have read the chronicles aright, there should be another. Has not your Majesty two sisters? Where is Queen Susan?"

"Yes," said Eustace, "and whenever you've tried to get her to come and talk about Narnia or do anything about Narnia, she says 'What wonderful memories you have! Fancy you still thinking about all those funny games we used to play when we were children.' "

"Oh Susan!" said Jill. "She's interested in nothing nowadays except nylons and lipstick and invitations. She always was a jolly sight too keen on being grow-up."

"Grown-up, indeed," said the Lady Polly. "I wish she would grow up. She wasted all her school time wanting to be the age she is now, and she'll waste all the rest of her life trying to stay that age. Her whole idea is to race on to the silliest time of one's life as quick as she can and then stop there as long as she can."

"Well, don't let's talk about that now," said Peter.

That passage has nothing to do with Susan's having hit puberty -- which Lucy herself would have long since experienced by this point in the books. The whole point is that Susan stopped believing in Narnia, and that she derides it all as a "funny game" that they had played as children. It's not that Susan is interested in nylons and lipstick; it's that she is interested in nothing else. She has become a fundamentally silly person whose only interest is popularity and who thinks of Narnia as a childhood fantasy.

All of this could as easily have been a male character: Imagine that Lewis had switched the roles of Susan and Edmund, with Susan being the bad character in the first book (of course, non-readers would have accused Lewis of sexism on that ground) and Edmund the person left out of Narnia in the last book. Lewis might then have had another character say, "Edmund is no longer a friend of Narnia. Whenever you try to get him to talk about Narnia, he says, 'What wonderful memories you have! Fancy you still thinking about all those funny games we used to play when we were children.' He's interested in nothing nowadays except football and racecars and alcohol. His whole idea is to race on to the silliest time of his life as quick as he can and then stop there as long as he can."

That would have been an equivalent passage. Would anyone raise the argument that Lewis's writing was anti-male, whether by portraying football and racecars as morally suspect, or by portraying a male character as stereotypically interested in those issue? I think not. The obvious point of such a passage would have been that Edmund had chosen 1) to center his life around frivolous things, and 2) to ridicule childhood beliefs that he, of all people, should have known to be true.

Friday, December 16, 2005

Marine Exam

I second Tom Smith's comment -- "Bias against the Bulky" -- about this article that briefly mentions the Marine Corps' physical exam:

He said if I wanted a shot at this I'd have to ace the physical fitness test, where a perfect score consisted of 20 pull-ups, 100 crunches in two minutes, and a three-mile run in 18 minutes.

3 miles in 18 minutes? 20 pullups? Those are very different tasks for someone who weighs 225 vs. someone who weighs 160.

I've thought about this a lot when I look at the world-class marathoners who run 26.2 miles in 2:10 or under -- a 5-minute mile pace. That is simply mind-boggling to me. But then I remember that these marathoners usually weigh about 80 pounds less than me. They carry a little bit less bodyfat, but it's mostly because they're shorter and less muscular. So strap an 80-pound backpack on them, and see how far or fast they could run then. (Well, ok, they'd still leave me in the dust, but not by as great a margin.)

Anyway, shouldn't these Marine tests -- runs, pullups -- be handicapped to account for the person's height and bulk?

Thursday, December 15, 2005

Scrambled Eggs

I always liked my grandpa's version of scrambled eggs, which is much different than Jane Galt's recipe here:

1. Cook some bacon in a frying pan.

2. When it's done, leave enough bacon grease in the pan to coat the bottom.

3. Crack the eggs and drop in the pan.

4. Don't stir it all up, as if the eggs have to be pureed or something. Let it sit for a bit to let the whites start to harden.

5. Then scramble. But not too much. Just enough to keep the bottom from sticking.

6. Add a bunch of salt and pepper.

The bacon grease makes it especially yummy, although I rarely use it (too lazy to cook bacon). What I like: The eggs have some texture, some variation between the bits that have more white and the bits that have more yolk. It's not just one solid and indistinguishable mass of yellowish stuff.

Wednesday, December 14, 2005

Atheism

The philosopher Daniel Dennett visited us at the University of Delaware a few weeks ago and gave a public lecture entitled "Darwin, Meaning, Truth, and Morality." I missed the talk -- I was visiting my sons at Notre Dame and taking in the Notre Dame-Navy football game. Friends told me what I missed, however. Dennett claimed that Darwin had shredded the credibility of religion and was, indeed, the very "destroyer" of God. In the question session, philosophy professor Jeff Jordan made the following observation to Dennett, "If Darwinism is inherently atheistic, as you say, then obviously it can't be taught in public schools." "And why is that?" inquired Dennett, incredulous. "Because," said Jordan, "the Supreme Court has held that the Constitution guarantees government neutrality between religion and irreligion." Dennett, looking as if he'd been sucker-punched, leaned back against the wall, and said, after a few moments of silence, “clever.” After another silence, he came up with a reply: He had not meant to say that evolution logically entails atheism, merely that it undercuts religion.

Jeff Jordan’s question underlines how the self-appointed defenders of the scientific method are trying to have it both ways. Don’t allow religious philosophy to intrude into biology classrooms and texts, they say, for that is to soil the sacred precincts of science, which must be reserved for hypotheses that can be rigorously tested and confronted with data. The next minute they are going around claiming that anti-religious philosophy is part and parcel of the scientific viewpoint.

Wednesday, December 07, 2005

Holiday vs. Christmas

Some people are evidently agitated that some other people use the word "holiday" rather than "Christmas." Perhaps both sides might take pause if they considered the etymology of the word "holiday," i.e., "holy day" (from the Anglo-Saxon halig dæg).

Pre-Roe Decisions

As I discussed recently, Judge Raymond Randolph recently revealed that Judge Henry Friendly -- one of the most famous and respected judges of the 20th century -- had written an opinion prior to Roe that upheld New York's anti-abortion law. Randolph's speech is now publicly available. As Randolph wondered:

History is full of “what ifs.” Over the years Judge Friendly’s opinions and writings have had a profound effect on many areas of federal law. I have often wondered whether his New York abortion opinion, had it been published, might have made a decisive difference, on the lower federal courts where abortion cases were pending and, ultimately, on the Supreme Court. He too must have wondered.

As it happens, the Supreme Court was actually influenced by another lower court decision. This is from an article by David Garrow reviewing a recent book titled What Roe v. Wade Should Have Said:

Almost equally surprising is the complete failure of all the contributors to evince any awareness at all of the one particular lower-court abortion opinion that indisputably had a major influence upon the Supreme Court’s own private deliberations about how to decide Roe and Doe. That opinion, by Judge Jon O. Newman on behalf of a special three-judge federal court in the Connecticutcase of Abele v. Markle,12 had a decisive effect on the thinking of Justice Lewis F. Powell13 and had a similarly significant impact upon Justice Potter Stewart.14 In particular, Judge Newman’s analysis of how abortion-law analysis should focus upon the concept of fetal viability was the subject of an especially influential private letter that Powell sent to Harry Blackmun.15 In the wake of that letter, Blackmun included reference to Newman’s analysis in a memorandum to all of his colleagues about his draft opinions in Roe and Doe,16 and Blackmun’s final Roe opinion included two citations to Newman in its text.17

Thursday, December 01, 2005

Narrow and Wide Injunctions

Here's Jack Balkin on the remedies available in the abortion notification case:

The most important moment came during Planned Parenthood's argument when Justice O'Connor said in the exasperated tone that usually indicates which way she is going to come down on a case (at about 5:40 in the second mp3 file): 'What resulted here was the invalidation of the entire statute and all of its applications. . . . So the question you're being asked is how can that be narrowed... The statute may well have a majority of valid applications, and what of our doctrines allow a narrower application. Obviously it's a matter of concern.'

The discussion that followed among the Justices concerned how to remand the case to the 1st Circuit so as to authorize it to issue a narrower injunction that would hold the statute inapplicable to situations where a doctor in good faith believes that there is a medical emergency that gives insufficient time to engage in a judicial bypass of the parental notification requirement. That is, they wanted to know how to send the case back down to keep the statute in place but hold it inapplicable to certain situations. From Justice Breyer's remarks, it looks as if a majority of the Court was warming to the task: Salerno wouldn't apply precisely, but courts in situations like that in Ayotte would be authorized to issue injunctions that got rid of certain applications of a statute while leaving the rest of the statute enforceable. It would be an ad hoc pragmatic sort of doctrine, not quite a full facial challenge, and not quite a traditional as-applied challenge, whose parameters are wildly uncertain, just the sort of thing that Justice O'Connor likes.

Sounds as if someone has been reading a law review article that Mark Rienzi and I published in the Utah Law Review in 2002, which spent nearly 80 pages arguing that federal courts can, and should, be willing to use precisely that sort of limited injunctive relief.